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Taking Casey (At Least Half) Seriously

[ 42 ] October 29, 2013 |

Several states have begun to erect a series of regulations on abortion that would make it essentially impossible for many women within their states to obtain an abortion by making it impossible for clinics to operate. The question now becomes whether the federal courts will prevent states from doing piecemeal what they’re theoretically constitutionally barred from doing explicitly. Yesterday’s district court decision striking down one provision of Texas’s draconian abortion law and narrowing another is not everything supporters of reproductive freedom could hope, but it’s a major step in the right direction if it’s upheld.

The relevant precedent governing abortion laws is the 1992 case Planned Parenthood v. Casey, which upheld Roe v. Wade while narrowing it. Under Casey, states are barred from banning pre-viability abortions. States are permitted to regulate abortion at any state of pregnancy, however, unless the regulation constitutes an “undue burden” on a woman’s right to choose to obtain an abortion. In theory, this standard should at an absolute minimum prevent states from creating a de facto ban on abortion by making it nearly impossible to perform one. As interpreted by the current swing vote on the Court, however, Casey has been rendered nearly toothless. Anthony Kennedy has not found any regulation of abortion unconstitutional since voting to strike down a spousal notification requirement in Casey itself.

If it is upheld, District Court Judge Lee Yeakel’s ruling would put some teeth back into Casey. In the most important part of the decision, Judge Yeakel held that the Texas regulation that requires doctors performing abortions have admitting privileges to a hospital was unconstiutional. Such provisions are particularly dangerous because they can permit anti-abortion hospital administrators to make being a doctor who performs abortions illegal in practice. Judge Yaekel found that Texas’s admitting priveleges requirement was “without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.”

Yeakel’s demonstration that the requirement is irrational is unanswerable. There is simply no necessity that a doctor performing an abortion have admitting privileges to a hospital. “A lack of admitting privileges on the part of an abortion provider is of no consequence when a patient presents at a hospital emergency room,” she points out, because it would be illegal to deny anyone emergency care. Especially since the provisions are an explicit part of a strategy to create a back door ban on abortion and would drastically limit the number of providers without providing any meaningful protection to a woman’s health, the unconstitutionality of the provision should not even be a close question.

With respect to Texas’s regulation of the use of abortion-inducing drugs, Yaekel is regrettably more charitable to unpersuasive justifications offered by the state. These regulations are important, because states who aim to make it all but impossible for doctors to perform abortions also want to make it impossible for women to obtain abortions on their own. Regulations of the use of prescription abortion drugs are an essential part of the one-two punch designed to ban abortion without being so explicit about it as to clearly violate Casey. Judge Yaekel upheld a provision of the Texas law that would prevent women using a regimen now approved by the American College of Obstetricians and Gynecologists self-administer the drugs at home, although he did hold that Texas cannot apply the provision in cases where a doctor finds than a surgical abortion is a threat to the life or health of the pregnant woman.

As MSNBC’s Irin Carmon observes, what’s curious about this part of Judge Yaekel’s opinion is that it follows a very convincing case that the provision is an undue burden on a woman’s right to choose. The court found that “the FDA protocol” Texas now requires doctors to follow “is assuredly more imposing and unpleasant
for the woman, requiring at least one additional visit to a clinic and allowing less control over the
timing and convenience of the medically induced miscarriage.” When a provision imposes a substantial burden on a woman’s ability to obtain an abortion without advancing any legitimate state interest — and Yaekel concedes that there is no evidence that the off-label protocol presents any significant risk to the health of women — it’s very difficult to conclude that the burden isn’t undue. And yet Yaekel upheld the provision at least in some cases.

Still, the opinion does apply a more serious scrutiny to draconian abortion regulations, one that would reflect the spirit of Roe v. Wade much more than the Supreme Court’s current toothless reading of Casey. The question now is whether Anthony Kennedy will finally start to take one of his most famous opinions seriously as well.

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  • The question now becomes whether the federal courts from preventing states from doing piecemeal from what they’re theoretically constitutionally barred from doing explicitly.

    Pardon?

    • Bill Murray

      I think Scott was trying to set a Guinness World record for the use of from

    • Scott Lemieux

      Fixorated! Sent wrong draft before class.

  • Rob Owen

    Your comments are on target, with this minor correction: Judge Lee Yeakel is a man (you use the feminine pronoun).

    • Denverite

      Beat me to this.

      • EH

        Thanks for sharing. You are also smart.

        • Jordan

          Ok, this made me laugh.

    • Scott Lemieux

      Dammit. Never have a piece in two text editors…

  • somethingblue

    The question now is whether Anthony Kennedy will finally start to take one of his most famous opinions seriously as well.

    Good luck with that.

    • I actually suspect he will. The partial birth laws were symbolic, and parental consent laws were upheld even under Roe’s stricter scrutiny.

      I know it’s uncomfortable to rely on Kennedy for anything, but I think the balance he wanted to strike is that abortion is legal but states can make you jump through hoops. Which means there’s likely a such a thing as too many hoops for Kennedy, especially when regulations effectively ban abortion in a state.

    • DrDick

      And exactly when have the conservatives on the court ever taken precedent seriously?

  • NewishLawyer

    I think Blackmun’s warnings were possibly among most prophetic words he ever wrote:

    “I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today. That, I regret, may be exactly where the choice between the two worlds will be made.”

    • Murc

      Blackmun was displaying a very common Supreme Court justice trait there, which is either breathtaking naivete or willful, blinkered ignorance.

      What that statement boils down to is “When I retire from the political body I am a part of, the confirmation process of my successor will focus on what stances they might take on the important political issues of the day. And isn’t that a shame.”

      • Hogan

        the confirmation process of my successor will focus on what stances they might take on the one and only one important political issues of the day.

        • Yeah, actually as important as abortion is, it isn’t as though the rest of the stuff the Court does is unimportant. There’s all sorts of reasons to care about supreme court justices.

  • Denverite

    I should note that this issue is going to be teed up nicely for the Fifth Circuit and SCOTUS. The Texas SG (Jonathan Mitchell, a law prof on leave from George Mason) is wicked smart, very, very conservative, and pretty intellectually up front. If you read the news reports about oral argument, he straight-up admitted that the privileges requirement was motivated by a desire to make abortions more difficult.

    • He’s stuck with it. Not only did a lot of legislators say that was the purpose, but it’s basically impossible to come up with a plausible cover story as to why these regulations are necessary.

  • TribalistMeathead

    This is why I’ll never be a libertarian. The notion of turning some states into giant Alternate 1985 Hill Valleys where residents of other states go to do things they don’t want to do in their own states is stomach-churning.

    • Sly

      And without a plucky, skateboard-riding teenager who listens to Huey Lewis and his scatter-brained, plutonium-stealing scientist friend to make things interesting.

    • Code Name Cain

      Alternative histories not withstanding, as every libertarian ever would say, real freedom is the freedom to be forced to move to another state if wealthy white males don’t care about your problems and if you are too poor to move to another state tough shit.

      • BigHank53

        Libertarianism, as far as I can tell, is mostly an excuse for manufacturing enough “losers” so that the libertarian can feel like Howard Roark. Only without the hard work of becoming a genius architect.

    • rea

      I’ve never understoood how the f**k “Libertarianism” came to mean “Big Government is okay as long as it’s Big Local Government.”

      • TribalistMeathead

        I haven’t seen evidence that that’s the case. Libertarians seem to spend an equal amount of time complaining about federal, state, and local governments.

  • Crunchy Frog

    The Rancid Five on the SCOTUS have in recent years used their majority to go out of their way to make decisions to help their corporate masters and to improve the GOP’s chance of election. But despite many opportunities they have left Roe in place, if barely so.

    Being cynical I’ve long stopped thinking that any of the Rancid 5 really considers written law, original intent, or whatever else they pretend to consider but basically is doing what is best for their side (of course, what they tell themselves as part of the rationalization process is another matter). So I figure they know that keeping Roe alive is critical for keeping their foot soldiers motivated and for preventing a major voting backlash on behalf of the Democrats.

    But eventually the game will be up … at some point either the SCOTUS keeps their 35+ year promise to the GOP base or they side-step an opportunity so obvious that everyone – even their gullible base – will figure it out. Perhaps this case, coming as it does at the same time that the Tea Party civil war is looming, will be that point.

    • Sen. Rand Paul

      So it’s even more important that you send me a check for whatever you can afford–$50, $100, even $250. The stakes have never been higher!

      • Kang

        If you run on a third-party ticket, I’ll give your proposal serious consideration. The Libertarians need you. And you will certainly do the country a great service if you go that route.

        • Malaclypse

          Dammit.

        • Kudos

          GO AHEAD, THROW YOUR VOTE AWAY.

          • Kodos

            Above was me. Oh, for an edit button!

            • James “Tiberius” Kirk

              The play is over. It’s been over for twenty years.

        • Crunchy Frog

          You realize, I hope, that the “Libertarian” Pauls are both in favor of complete abortion bans and other Xtian Dominationist laws.

          And those bits of the Paul platform that progressives like, such as ending the war on drugs, legal marijuana, and reduced military? Guess which platform planks are the first bargaining chips to be tossed in any serious negotiation.

          • Sen. Rand Paul

            Poe’s Law strikes again.

        • BubbaDave

          Hell, Senator, if you run on a third-party ticket I’ll probably vote for you*!

          *because even splitting the nutjob vote here in Texas seems unlikely to make it turn blue on a Presidential level, and if I’m going to throw my vote away it might as well be in the service of ratfking the ratfkers

  • Davis X. Machina

    …a woman’s ability to obtain an abortion without advancing any legitimate state interest

    Some day — not tomorrow, not next year, not ten years from now, but some day — there will be 5 votes for a less-than-universally held Catholic late medieval/early Renaissance theory of ensoulment, and then, poof!, there’s a compelling state interest.

    These people are nothing if not patient, and they think in absolutes.

  • Bart

    Good luck with having six Catholics on the Court!

    • MPAVictoria

      I actually wonder why progressives don’t talk about this fact more often. It would be nice to have a atheist on the court for a change.

  • A Different John

    My guess is that for five members of the Court, putting an undue burden on the doctor is not the same as putting an undue burden on the woman. After all, states have a right to regulate resident doctors, it says so in the Constitution!

  • rea
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